Citation Nr: 9901034
Decision Date: 01/15/99 Archive Date: 01/22/99
DOCKET NO. 91-49 361 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased rating for post-traumatic stress
disorder (PTSD) currently rated as 70 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Terence D. Harrigan, Counsel
INTRODUCTION
The veteran had active military service from September 1940
to November 1959. He was a prisoner of war (POW) of the
Japanese government from March 1942 to September 1945.
This case came before the Board of Veterans' Appeals (Board)
on appeal from a decision of the St. Petersburg, Florida,
Regional Office (RO) of the Department of Veterans Affairs
(VA). In a decision dated in May 1996 the Board denied,
inter alia, the veteran’s claim for an increased rating for
PTSD. The veteran appealed that denial to the United States
Court of Veterans Appeals (Court). In June 1997, on the
basis of a joint motion of the parties, the Court remanded
the issue to the Board for readjudication under revised
rating criteria applicable to mental disorders. [redacted].
In February 1998 the Board remanded the case to the RO for
initial consideration under the revised rating criteria. The
case is now before the Board for further appellate review.
FINDING OF FACT
The veteran has PTSD manifested by tension, anxiety,
irritability, anger, depression, nightmares, intrusive
thoughts and a desire to be alone
CONCLUSION OF LAW
The schedular criteria for a rating of 100 percent for PTSD
are not met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998);
38 C.F.R. §§ 4.132 Code 9411 (1996), 4.130 Code 9411 (1998).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board finds that the veteran’s claim is well grounded
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 &
Supp. 1998). The Board further finds that all relevant facts
have been properly developed and, therefore, the statutory
obligation of the VA to assist in the development of the
appellant’s claim has been satisfied. Additionally, the
Board finds that the record is now complete in accordance
with the June 1997 remand of the Court.
The record shows that the veteran was a POW of the Japanese
in the Dutch East Indies from March 1942 to September 1945.
On his initial VA examination for compensation purposes in
February 1983, he was diagnosed as having PTSD. His symptoms
were described as mild and consisted of recurrent thoughts of
his POW experiences (primarily beatings), nightmares, startle
response, hyperventilation, anxiety and poor temper control.
In a rating action dated in April 1983 service connection for
PTSD was granted and a 10 percent rating was assigned.
On VA examination in July 1985 the veteran described
nightmares which sometimes woke him up. He was described as
somewhat tense and mildly restless. He became upset while
talking about his POW experiences. It was reported that he
was on medication and still had episodes of anxiety and
depression. In a rating action dated in August 1985 a 30
percent rating was assigned.
On VA examination in October 1990 the veteran complained of
becoming angry with small provocation and being explosive to
the point that he was afraid of his own violence.
Examination revealed that he appeared to be quite tense. His
answers were vague when describing his nervous symptoms. He
stated that he did not want to see people. He was alert and
cooperative. Sensorium was clear. He had some problems with
memory. He reported constant depression and early awakening.
Diagnoses were depressive neurosis and passive aggressive
personality. The examiner commented that the veteran’s
symptoms did not fulfill the criteria for PTSD
A review of the veteran’s VA mental health clinic records
dated in May 1991 reveals that the primary diagnosis for
which he was being treated was PTSD, chronic, severe, with
associated depression and anxiety. It was noted that the
veteran’s life had been strongly influenced by his POW
experience. Therapy sessions focused on his various
experiences in the POW camp and his feelings about those
experiences and how he was unable to forget the trauma
suffered there. He exhibited a constant state of tension and
hyperalertness. His relationship with his wife was strained
and involved frequent arguments. He reported an inability to
feel close or express any tender feelings. He reported
difficulty controlling a feeling of anger and rage that was
just under the surface. He was defensive, which caused an
inability to socialize with other people. He was reclusive
and avoided stress. He exhibited a startle response and he
became tearful easily when discussing his POW experiences and
the unfairness of life in general. In a rating action dated
in August 1992 a 50 percent rating was assigned.
On VA examination in December 1992 the veteran complained of
having a bad attitude and not wanting to socialize.
Examination revealed that he was cooperative. He became very
excited as he began to discuss details of his POW experience.
He became so tense and excited that he lost breath control
and began gasping. As the examination continued he often
became side-tracked and returned to discussing his POW
experience, again becoming emotionally aroused and excited.
He was oriented in three spheres. He had concentration and
attention difficulties. He became so easily upset when
required to concentrate that he could not carry through
anything more than very simple tasks. The diagnosis was
PTSD. In a rating action dated in February 1993 a 70 percent
rating was assigned along with a total disability rating
based on individual unemployability.
A review of the veteran’s VA mental health clinic records
dated in May 1994 reveals that he was being treated for
depression and anxiety associated with chronic severe PTSD.
He was seen once a month for supportive therapy. It was
reported that his medications had allowed some small
stability in his life, especially in his marital relationship
which had become less combative. He continued to complain of
nightmares, daytime memories and intrusive thoughts about POW
experiences.
On VA examination in May 1998 the veteran complained of
increasing irritability and dissatisfaction with practically
everyone and everything. He reported that he spent most of
his time alone. Examination revealed that that he was
appropriately groomed and dressed and cooperative. Speech
was fluent. Mood was irritable and angry. Affect was
compatible with mood and with the context of conversation.
There were no hallucinations or delusions. Perceptual
functioning was intact. Thought processes were logical and
coherent, but often vague. He was alert and correctly
oriented. He correctly defined proverbs and had a good
vocabulary. The diagnosis was PTSD. The current rating on
the Global Assessment of Functioning (GAF) Scale was 55. The
highest GAF for the last year was 55.
Under the rating schedule provisions in effect prior to
November 7, 1996 a 70 percent rating was provided for PTSD
where the ability to establish or maintain effective or
favorable relationships with people was severely impaired and
there was severe impairment of social and industrial
adaptability. A 100 percent rating was provided where the
attitudes of all contacts except the most intimate were so
adversely affected as to result in virtual isolation in the
community and there were totally incapacitating symptoms
bordering on gross repudiation of reality with disturbed
thought or behavioral processes associated with almost all
daily activities such as fantasy, confusion, panic and
explosions of aggressive energy resulting in profound retreat
from mature behavior. 38 U.S.C.A. § 1155 (West 1991 & Supp.
1998); 38 C.F.R. § 4.132 Code 9411 (1996).
Under the rating schedule provisions which became effective
on November 7, 1996, a 70 percent rating is provided where
there is occupational and social impairment with deficiencies
in most areas, such as work, school, family relationships,
judgment, thinking, or mood due to such symptoms as:
suicidal ideation; obsession rituals which interfere with
routine activities; speech intermittently illogical, obscure,
or irrelevant; near-continuous panic or depression affecting
the ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); and inability to establish and
maintain effective relationships. A 100 percent rating is
provided where there is total occupational and social
impairment, due to such symptoms as: gross impairment in
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss for names of close relatives, own occupation, or
own name. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998);
38 C.F.R. § 4.130 Code 9411 (1998).
It is argued on behalf of the veteran that his PTSD symptoms
more closely approximate the criteria for a 100 percent
rating than those for a 70 percent rating and that,
consequently, a 100 percent schedular rating is warranted.
The PTSD is manifested by tension, anxiety, irritability,
anger, depression, nightmares, intrusive thoughts and a
desire to be alone. The Board recognizes that the veteran
suffers from severe PTSD symptoms which significantly
interfere with his domestic, social and industrial
functioning. However, his symptoms are not shown to be so
severe as to warrant a 100 percent schedular rating under
either the old or the new rating criteria. While he prefers
to spend time alone, he is not virtually isolated in the
community because of PTSD symptoms. Clinical records show
that medicines brought some stability to his life, and he
apparently participates in group therapy on a regular basis.
Nor is there any indication that the veteran has totally
incapacitating symptoms bordering on gross repudiation with
reality with disturbed thought or behavioral processes
associated with almost all daily activities. Fantasy,
confusion, panic, or explosions of aggressive energy
resulting in profound retreat from mature behavior are not
clinically shown. While he is described as irritable and
angry, on examination his thought processes were logical and
coherent, and he was alert and oriented.
Considering the new criteria, there is no showing of symptoms
such as gross impairment in thought processes or
communications, persistent delusions or hallucinations
grossly inappropriate behavior, persistent danger of harm to
self or others, intermittent inability to perform activities
of daily living, disorientation, or any extensive memory loss
productive of total occupational and social impairment. On
examination the veteran was described as cooperative and
coherent. He had fluent speech. He dressed and was groomed
appropriately. There were no hallucinations or delusions.
Perceptual functioning was intact.
In fact, it is not shown by the competent (medical) evidence
of record that the veteran has any of the symptoms (to the
degree specified) required for a 100 percent schedular rating
under either the old or the new criteria. To the extent that
the psychiatric disorder contributes to his unemployability,
such impairment is recognized by the VA’s grant of a total
disability rating based on individual unemployability.
Inasmuch as the overwhelming preponderance of the evidence is
against the claim for a 100 percent schedular rating,
38 C.F.R. § 4.7 (specifying that the higher of two ratings is
to be assigned if more closely approximated) and 38 C.F.R.
§ 3.102 (specifying that any reasonable doubt is to be
resolved in the claimant’s favor) are not for application.
ORDER
A rating in excess of 70 percent for PTSD is denied.
GEORGE R. SENYK
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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